Agricultural Zoning

(August 2001)
Prepared by David Kruft, Legal Research Assistant
The Agricultural Law Resource and Reference Center
The Dickinson School of Law of The Pennsylvania State University
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A. Introduction
Zoning is a system that regulates the type and intensity of land use development that occurs
within a community. To create a zoning system, a local government divides the municipality
into districts and regulates the construction and use of buildings within these districts.
Regulations may differ among the districts, but within each individual district, the regulations
must be uniform.
1
A zoning system enables the community to conform its future growth to a set of goals and
policies that reflect the community's vision for itself. For example, a municipality that sets a
goal to strengthen the central business district would likely create a zone in its downtown
into which only such intensive commercial uses would be allowed. Similarly, a community
that chooses to remain rural might create a zone that allows minimal development, and then
place a significant proportion of its land within this zone.
Agricultural zoning is a specialized form of zoning used by communities that seek to
preserve their agricultural base. It reflects a community-wide policy that farmland is a
valuable resource that should be preserved to ensure the continued production of
agricultural commodities.
The basic building block of an agricultural zoning scheme is an agricultural zone with
regulations that strictly limit the construction of all buildings and structures unrelated to
agricultural land uses and activities. Most often, an agricultural zone is part of the
community's overall zoning scheme.

B. Purpose
The purpose of agricultural zoning is to protect farmland from incompatible uses that would
adversely affect the long-term economic viability of the area within the region. Zoning
accomplishes this purpose in several ways.
First, zoning protects agricultural land by minimizing land use conflicts and precluding land
use controversies. As municipalities grow, the influx of non-agricultural land uses to

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The Center does not provide legal advice, nor is its work intended to be a
substitute for such advice and counsel.
previously agricultural areas often creates conflict between the farming activities, such as
spreading manure, and non-farming activities. These conflicts sometimes lead adjoining
landowners to a lengthy and costly "nuisance suits," which allege that the agricultural
operation is interfering with the adjoining landowners right to use and enjoy his/her
property. Agricultural zoning avoids these controversies by segregating agricultural lands
from non-agricultural land uses and keeping agricultural activities at a distance from non-
farming activities. The segregation of land uses minimizes the number of non-farming
landowners impacted by farming activities and reduces the conflicts that arise between
farming and non-farming neighbors.
Second, agricultural zoning maintains the vitality of the agricultural sector by retaining a
critical mass of agricultural land. Scattered development of non-agricultural buildings often
interferes with an agricultural operation's ability to maintain an effective operation, not only
by creating a physical obstacle to performing activities efficiently, but also because it
diminishes the strength of the overall agricultural community. Non-farm development
interferes with the efficient administration of farm duties and diminishes the overall strength
of the agricultural community.
Third, effective agricultural zoning ordinances protect prime agricultural soils. Obviously, a
dynamic agricultural sector requires soils amenable to food production for human and
animal consumption. Not all communities contain such valuable soils, however, and many
communities contain them in a limited supply. By preserving for agricultural use those soils
that are most suitable for agriculture and directing other development to non- suitable soils,
zoning maintains in continued use perhaps the most vital ingredient of a healthy agricultural
community.

C. Statutory authority to zone for agriculture
In Pennsylvania, the authority to zone for agriculture is found in the Municipalities Planning
Code of 1968, as amended (MPC).
2
Recent amendments to the MPC require municipalities
to zone to preserve "prime agriculture and farmland."
3
However, long before the MPC mandated agricultural zoning, municipalities were zoning to
protect farmland by developing and adopting ordinances that contained agricultural zones.
The authority for municipalities to create agricultural zones derives from its overall authority
to create general-purpose zoning ordinances, which was also granted to municipalities
through the MPC.
4
As early as 1926, the U.S. Supreme Court had endorsed zoning as a constitutional exercise of
a municipality's police power to regulate for the health, safety, morals, and welfare of the
general population.
5
When the Pennsylvania Assembly initially passed the MPC in 1968, it
granted municipalities the authority to create zoning ordinances based on this police power.
Many municipalities used this authority to create zoning ordinances that protected farmland.

D. Types of agricultural zoning
When zoning to protect agriculture, municipalities may choose one of two types of zoning:
exclusive agricultural zoning or non-exclusive agricultural zoning. Non-exclusive agricultural
zoning is by far the more common of the two.
1. Exclusive agricultural zoning
Exclusive zoning prohibits all non-farm residences and most non-agricultural activities from
an agriculture zone. Exceptions to this requirement may be granted for parcels of land that
are not suitable for farming.
This type of agricultural zoning is rarely used. It is more vulnerable to legal challenge than
non-exclusive agricultural zoning, and, when challenged, more likely to be struck down.
2. Non-exclusive agricultural zoning
Non-exclusive agricultural zoning allows non-farm (residential) dwellings, but strictly limits
the number of such dwellings. In addition, non-exclusive zoning often allows the
construction of conditional uses if these uses are located on land of low quality for farming.
For example, the agriculture zone for Peach Bottom Township (York County) allows four
principal uses: farm, forest and wildlife preserve, greenhouse/nursery, and single family
dwellings. The zone also allows a number of uses by special exception, including house of
worship, cemetery, school, kennel, animal hospital, and trailer camp. These conditional uses
may be constructed only when authorized by the Zoning Hearing Board.
Non-exclusive agricultural zoning is composed of two specific methods: large minimum lot
size zoning and area-based allocation.
Large minimum lot-size zoning
Large minimum lot-size zoning limits the number of dwelling units that can be constructed
in an agriculture zone by requiring a very large minimum lot size. No parcel may be
subdivided from an existing farm unless it is larger than the required minimum lot size.
Proponents of this method claim that large lot sizes discourage residential development by
pricing the costs of such development outside a range affordable to most consumers. In
addition, even if a farm is subdivided, the large lot requirement maintains the viability of
each subdivided parcel as a working farm.
Opponents criticize large lot size zoning as inadequate because, though larger than the
average subdivided parcel, the lots are not sized to support the needs of a modern farm,
particularly in its use of machinery. In addition, the subdivided lots often cut across various
classes of soils in order to meet standardized land development requirements.
Area-based allocation
Area-based allocation zoning determines the number of non-farm dwelling units that may be
subdivided from an agricultural parcel by basing that number on the size of the original
parcel. Area-based zoning establishes a formula that calculates the permitted number of non-
farm dwellings. In general, a larger agricultural parcel will yield more permitted non-farm
dwelling units.
Area-based allocation zoning requires that the non-farm dwelling units be built on small lots
(e.g. two acres or less). By requiring small lots for the non-farm dwelling units, large areas are
left intact for agricultural uses.
Supporters of area-based allocation zoning claim that it provides greater flexibility in where
to site the non-farm dwellings. This flexibility allows landowners to preserve large pockets of
valuable soils. In addition, the agricultural parcel from which the non-farm dwellings are
subdivided retains more land than with minimum lot-size zoning.
Municipalities generally use one of two types of area-based formulas: a fixed-system formula
or a sliding scale formula. A fixed-system formula allows one dwelling for a specified
number of acres. For example, a municipality may allow one non-farm dwelling unit for
every 25 acres of an agricultural parcel. A 25-acre parcel would yield one non-farm dwelling;
a 100-acre parcel would yield four non-farm dwellings.
A sliding scale formula varies the number of allowed dwelling units based on the acreage of
the parcel from which the units will be subdivided. As the size of the agricultural parcel
changes, the number of severable parcels changes accordingly.
Sliding scale formulas are rarely linear. In general, larger agricultural parcels may subdivide
proportionally fewer non-farm dwelling units than smaller agricultural parcels. A non-linear
sliding scale formula is based on the premise that smaller agricultural parcels are less viable
than larger parcels. Allowing increased non-farm development on these parcels satisfies the
demand for residential dwellings and shifts this demand away from valuable agricultural
parcels towards less valuable agricultural parcels.
E. Legal challenges to agricultural zoning
There are several legal challenges that can be mounted against zoning ordinance provisions
(including provisions designed to protect agriculture). The first challenge is a "takings"
challenge. The second challenge is a "substantive due process" challenge. Both of these are
constitutional challenges. The third legal challenge, unique to Pennsylvania, is the curative
amendment process.
1. Takings challenge
A takings challenge occurs when a landowner claims that his property has been taken by the
government without just compensation, in violation of the Fifth Amendment of the U.S.
Constitution.
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Property can be taken by the government through direct action, such as
eminent domain, or through regulation, such as a zoning ordinance or environmental
regulations.
The U.S. Supreme Court has developed a two-tier test to determine when a citizen's property
has been taken by government action. The Court has determined that an act by the
government that denies a property owner of all economic beneficial or productive use of his
land is a categorical taking, and is thus unconstitutional.
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A governmental act that does not
meet the Lucas test is nonetheless a taking if it interferes with a property owner's
"reasonable, investment-backed expectations."
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In reviewing government action under a non-categorical takings claim, the Pennsylvania
Supreme Court has supplemented the Penn Central test by taking into account three
considerations:
The interest of the general public, rather than a particular class of persons, must
require governmental action;
The means must be necessary to effectuate that purpose;
The means must not be unduly oppressive upon the property holder, considering the
economic impact of the regulation, and the extent to which the government
physically intrudes on the property.
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Because zoning generally and agricultural zoning in particular is often considered to
further the general welfare, and because most agriculture zones allow some minimal
development of the site, it is difficult to bring a successful takings suit against a government
entity that engages in agricultural zoning.
2. Substantive due process
A second challenge to government action is brought under the legal theory of substantive
due process. When reviewing a substantive due process claim, a court determines whether
the government's act, such as the passing of legislation, is so fundamentally unfair that it
cannot be remedied, even by procedural due process (e.g. even by an opportunity to be
heard or a fair administrative hearing). A government act that does not violate substantive
due process is one that:
Addresses a public purpose;
Is reasonably related to that public purpose; and
Does not unfairly impact the property owner.
In 1985, the Pennsylvania Supreme Court used a substantive due process analysis to uphold
the validity of agricultural zoning.
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In Boundary Drive, a landowner challenged a sliding-
scale zoning ordinance that limited the number of parcels he could subdivide from his prime
agricultural land. The court found that the township's sliding scale formula did not violate
the landowner's substantive due process rights. The formula, the court stated, was
substantially related to the goal of preserving farmland and was not too restrictive. However,
the court suggested that there may be instances when a zoning ordinance is invalid. A zoning
ordinance that is arbitrary, unreasonable, or unrelated to the public, health, safety, morals
and welfare could violate due process.
3. Curative amendments
A zoning scheme can also be frustrated through the actions of a landowner or developer. In
Pennsylvania, landowners and developers may petition for a curative amendment to a
municipal zoning ordinance by alleging that a municipality has unconstitutionally failed to
provide for its "fair share" of a particular land use.
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If the petition is successful, the
challenging party may have the zoning changed to conform to the development scheme.

F. Advantages and disadvantages of agricultural zoning
Like the other farmland protection tools, agricultural zoning has both advantages and
disadvantages. One advantage of agricultural zoning is that it can be used effectively to
protect large tracts of land. Other protection tools such as agricultural security areas, Clean
and Green, and conservation easements protect farmland on a parcel-by-parcel basis.
Agricultural zoning can be used to protect dozens of acres of farmland within a township,
simply by placing these acres within an effectively-drafted agricultural zone that discourages
non-farm development.
Another advantage to zoning is that it protects these large tracts of land at a relatively low
cost. The largest cost associated with zoning is fees paid to a consulting firm. Other costs
may include municipal staff time to manage the firm and to hold public meetings for review.
There are very few other costs associated with this protection tool. Unlike conservation
easements, which require significant public funds to purchase the development rights for
each acre, costs to implement zoning are relatively modest.
A disadvantage to zoning is that it can be easily "un-done." Even the most effective
agricultural zoning system is merely a policy statement of the current township board of
supervisors. A change in the political climate of the municipality or even of the point of view
of one of the supervisors can lead to that zoning system being repealed and replaced by a
significantly weaker system. Supervisors need not repeal the entire ordinance to weaken the
zoning scheme in a particular township. Simply by changing the zoning on a particular
parcel, township supervisors can weaken the integrity of an agricultural zoning system.
Compared to conservation easements, which protect farmland in perpetuity, agricultural
zoning can be weakened significantly.
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1
For additional information on zoning, see Planning Series #4: Zoning, Governor's Center
for Local Government Services, Pennsylvania Department of Community and Economic
Development, 1999.
2
A recent decision from the Pennsylvania Supreme Court indicates that the MPC grants
municipalities the power to create but not to suspend a zoning ordinance. The power to
suspend a zoning ordinance (i.e. impose a moratorium), the court noted, is distinct from and
not incidental to the power to enact an ordinance. See Naylor et al v. Township of Hellam,
773 A2d 770 (2001).
3
53 P.S. 10604 (3). The statute defines "prime agricultural land" as land used for agricultural
purposes that contains soils of the first, second or third class as defined by the United States
Department of Agriculture Natural Resource and Conservation Services County Soil Survey
( 53 P.S. 10107(a)).
4
53 P.S. 10603(a): "Zoning ordinances should reflect the policy goals of the statement of
community development objectives required in section 606, and give consideration to the
character of the municipality, the needs of the citizens and the suitabilities and special nature
of particular parts of the municipality."
5
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
6
"[N]or shall private property be taken for public use, without just compensation." U.S.
Constitution.
7
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)
8
Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978)
9
United Artists' Theater Circuit v. City of Philadelphia, 535 Pa. 370 (1993)
10
Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 507 Pa. 481
(1985).
11
In determining whether a zoning ordinance excludes a particular use, Pennsylvania courts
ask three questions: one, is the municipality a logical place for development; two, how highly
developed is the municipality; and three does the ordinance effect an exclusionary result?